Tag: Act of Settlement 1700

‘the oath … shall … be administered to [the Monarch] at the time of their coronation … by the Archbishop of Canterbury …’ (Coronation Act 1688, s.2)

‘Every King and Queen … shall have the coronation oath administered to him, her or them at their respective coronations, according to the [1688] Act’ (Act of Settlement 1700, s.2)

The Coronation Oath Act was passed in the wake of the Glorious Revolution. The text of the oath is prescribed by s.3. This well-researched, absorbing article draws attention to a curious fact. S.3 has never been expressly amended since 1688. Yet the oath actually taken by the Monarch at the coronation has varied several times over the years. Its present wording is now significantly different from the unamended statutory text. Does this difference mean that the oath, as actually taken by the Monarch, is illegal?

The article relates that the oath was first altered for King George I, to refer to ‘Great Britain’ rather than ‘England’, on account of the Anglo-Scottish Union of 1707. It was altered again because of the Anglo-Irish Union of 1800, which created the United Church of England and Ireland. Then the reference to the Irish Church was removed following the disestablishment of the Church of Ireland in 1869.

The present version of the oath dates from the coronation of King George VI (our present Queen’s father) in 1937. The 1937 variation was precipitated by the Statute of Westminster 1931, which granted or confirmed the right of the overseas Dominions of the Crown (Canada, Australia, New Zealand etc) to self-government. The 1937 oath was repeated by the Queen at her coronation in 1953.

The learned author’s opinion is that the pre-1937 variations of the coronation oath all had proper legal authority, even though s.3 of the 1688 Act was never amended. They were authorised either expressly or by necessary implication in the Acts of Parliament which effected the Anglo-Scottish and Anglo-Irish Unions, and Irish Disestablishment. However, he argues that the 1937-1953 variation of the oath did not enjoy such authority, because it went beyond any requirement of the Statute of Westminster.

In the 1937-1953 oath, the Monarch promises ‘to govern the peoples of Great Britain, Ireland, Canada etc … according to their respective laws and customs’ (p.330). However, it omits the promise in the 1688 oath to govern ‘according to the statutes in Parliament agreed upon’.

The author seems to accept that the Statute of Westminster necessitated some amendment of the coronation oath. The oath could not very well contain an unqualified commitment to govern according to the Acts of the Westminster Parliament, because the Statute made clear that many of the Monarch’s subjects were not to be governed from Westminster in the future. And the 1937 oath does promise to govern ‘according to … laws and customs’, which presumably includes statute law. Is it not farfetched to characterise the 1937 oath as a royal ‘power grab’?

However, the Glorious Revolution was an assertion of the constitutional supremacy of Parliament. Parliamentary supremacy remains the basis of the British Constitution to this day, notwithstanding British membership of the European Union, and the devolution of legislative powers to Scotland, Wales and Northern Ireland.

Thus the author argues that the Statute of Westminster did not justify ‘The absence of any reference to Parliament as the ultimate source of the laws of the realm [this] does, in theory, reignite old controversies which date to the days of Charles II and … further back to Edward II … ‘. He therefore concludes ‘with reluctance’ that ‘any oath administered at a coronation is unlawful if it does not … refer to Parliament’ (p.332).

Though he strives to remain calm and optimistic, it is clear that the learned author’s conclusion gives rise to a most alarming possibility. Perhaps ‘unlawful oaths equal unlawful reigns’ (p.336). Just imagine ‘the constitutional chaos that would ensue’! If the Monarch failed to take the oath as required by the 1688 Act and by the Act of Settlement perhaps she is not really Queen. All the laws passed during her long reign will be invalid, since she had no authority to approve them.

Fortunately this may not be the case after all. The article cites a reassuring dictum of the Court of Appeal: ‘our Queen … has been accepted by Parliament and by the nation, as the rightful person to inherit the Crown as of the date of her coronation … it is not now, in the year 2000, open to … challenge her right to the succession’ (p.337).

The learned author offers 2 possible solutions to the hidden constitutional crisis that he has uncovered:

(1) Her Majesty might have acquired a prescriptive right to the Crown ‘pursuant to lengthy occupancy of the throne’, despite the invalid oath (p.337). However, there is a difficulty here: ‘prescription is dependent on the [fiction] that the right claimed has a lawful origin. The exposure of the fiction is fatal …’ (p.338). Thus a prescriptive right to the Crown would depend on the presumption that the coronation oath had been lawfully taken, but the ‘well-documented evidence to the contrary’ would rebut that presumption. So the prescriptive claim would fail, alas.

(2) the equitable doctrine of part performance might apply. A person who has conscientiously performed her side of bargain should not be deprived of the benefit of it just because a legal formality was overlooked when the bargain was struck.

It is incontestable that Her Majesty has always acted in accordance with the 1688 oath, even if she never validly took it. She has always scrupulously respected Parliamentary supremacy. Thus she has kept her side of the post-1688 constitutional bargain with her subjects. Therefore, happily, ‘we might be permitted to conclude that the person taking the oath should be regarded by law as being in the same position as if the oath had been correctly taken’ (p.340).

This all makes gripping reading. However, it is argued that the constitutional difficulty, if it exists (which we rather doubt), is not quite as serious as the learned author imagines. The flaw in his fascinating thesis is that it assumes that the coronation oath, in the correct form, is a condition of the Monarch’s title to the Crown. It is not.

‘The King is dead – long live the King!’ is a traditional acclamation of the accession of a new Monarch. F.W Maitland observed in The Constitutional History of England (1911) that ‘The King never dies … under the Act of Settlement, and some centuries before it, the heir begins to reign at the moment of the ancestor’s death’ (p.343).

The coronation rite begins with a ceremony known as The Recognition. The Monarch formally shows herself to her subjects, while the Archbishop says ‘Sirs, I here present unto you Queen Elizabeth, the undoubted Queen of this Realm … ‘. The Recognition occurs before the oath is taken, and before the Monarch is crowned. It makes the point that the Monarch is already fully entitled to the Crown. The coronation rite proclaims the Monarch’s title, celebrates it, invokes God’s Blessing on it. But it does not confer, or even confirm, that title.

The coronation oath is therefore not comparable to the oath of office sworn by the President of the United States at his inauguration. The learned author himself admits that King Edward VIII was never crowned at all, and so never took the oath, but there is no doubt that he was the lawful Monarch till his abdication. Maitland suggested that ‘The coronation … does not seem to be a legally necessary ceremony’.

It is true, however, that the coronation oath is a mandatory legal requirement. It is not discretionary or negotiable. If a hypothetical Monarch declined to have the oath administered to him or her in accordance with the Act of Settlement, i.e flatly refused to take the oath, then this would cause a constitutional crisis. Possibly it could be argued that a Monarch who refuses the oath has thereby forfeited his or her right to the Crown. However, the right would not be forfeit ab initio, but only from the time of refusal. And, of course, refusal of the oath is not the issue here. The only issue is the correct administration of the oath.

The statutory provisions quoted above are worded passively. The Monarch does not take the oath: the oath is administered to the Monarch by the Archbishop of Canterbury. Thus it is the Archbishop, not the Monarch, who is responsible for the correct administration of the oath, including the correct wording. It follows that, if the oath is not administered correctly, any legal consequences will fall on the Archbishop alone.

There are 2 possible consequences:

(1) the secular court could require the Archbishop to administer the oath again, and correctly this time and / or

(2) the Archbishop could be haled before the ecclesiastical court to answer a disciplinary complaint of ‘neglect or inefficiency in the performance of the duties of his office’ (cf. Clergy Discipline Measure 2003, s.8(1)(c)).

Which would all be very embarrassing for the poor Archbishop, no doubt. But the Monarch’s title to the Crown would continue serene and undisturbed.